Date: 19980619
Docket: A-591-96
CORAM: STRAYER, J.A.
McDONALD, J.A.
HENRY, D. J.
BETWEEN:
ANDREW KUTNEY
Appellant
- and -
HER MAJESTY THE QUEEN,
Respondent.
HEARD at Toronto, Ontario, Wednesday, June 17, 1998
JUDGMENT delivered from the Bench at Toronto, Ontario, Wednesday, June 17, 1998
REASONS FOR JUDGMENT BY: McDONALD, J.A.
Date: 19980619
Docket: A-591-96
CORAM: STRAYER, J.A.
McDONALD, J.A.
HENRY, D. J.
BETWEEN:
ANDREW KUTNEY
Appellant
- and -
HER MAJESTY THE QUEEN,
Respondent.
REASONS FOR ORDER
(Delivered from the Bench at Toronto, Ontario
on Wednesday, June 17, 1998)
McDONALD, J.A.
1 We are all of the view that the appeal should be dismissed. We have not been convinced that in dismissing the appellant's application to set aside an earlier judgment of the Court dismissing the appellant's appeal from an assessment of income tax on the ground that the appellant failed to appear at a Status Hearing Date on August 8, 1994, the Tax Court Judge exercised his discretion improperly. The Tax Court Judge appears to have given sufficient weight to all relevant considerations in arriving at his conclusion.
2 The appellant was required at the status hearing to show cause why the appeal should not be dismissed for delay. After being served a Notice of Status Hearing in accordance with the Rules, the appellant failed to appear. The appellant claims not to have received the Notice as he had moved. However, he failed to notify the Tax Court (as he is required to do) that the address he had provided for service was no longer valid. The record also shows that he did nothing to prosecute his appeal from the time of filing his List of Documents in October of 1993 until March of 1996. As a solicitor or former solicitor, the appellant should be aware of the fact that he had the onus of pursuing the litigation.
3 All of these factors were properly considered by the Tax Court Judge in arriving at his decision not to interfere with the earlier decision of the Court. Having failed to find any reviewable error on which this Court may interfere with the decision of the Tax Court Judge, the appeal is dismissed with costs.
"F.J. McDonald"
J.A.
Names of Counsel and Solicitors of Record
DOCKET: A-591-96
STYLE OF CAUSE: ANDREW KUTNEY
- and -
HER MAJESTY THE QUEEN
DATE OF HEARING: JUNE 17, 1998
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR JUDGMENT BY: McDONALD, J.A.
Delivered at Toronto, Ontario
on Wednesday, June 17, 1998
APPEARANCES:
Mr. Andrew Kutney
For the Appellant
Ms. Donna Dorosh
For the Respondent
SOLICITORS OF RECORD: Andrew Kutney
c/o Sylvia S.Y. Tseng
Patterson, MacDougall
1 Queen Street East
Suite 2100
Toronto, Ontario
M5C 2W5
For the Appellant
George Thomson
Deputy Attorney General
of Canada
For the Respondent
FEDERAL COURT OF APPEAL
Date: 19980619
Docket: A-591-96
BETWEEN:
ANDREW KUTNEY
Appellant
-and-
HER MAJESTY THE QUEEN
Respondent
REASONS FOR JUDGMENT
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